Nature of the Case
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Facts
The parties entered into a written agreement for P to lease to D a dwelling house for the term of one year at an annual rent of $3,100. D covenanted to pay said sum in equal monthly payments commencing on the 1st day of November. A referee found performance by P and a failure to perform by D. D failed to pay the rent for July, August, and September. The referee found that during the time period of the lease, noxious gases, and strong and unhealthy and disagreeable odors existed generally and in very large quantities throughout the dwelling house, making D sick and rendering the house unfit for human habitation. The referee found that these gases came from the building next store which was a livery stable and that neither party knew of their existence when the lease was executed. The judgment was entered for P and D appealed.
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